Citation Nr: 21069923 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 17-47 773 DATE: November 22, 2021 ORDER An initial compensable rating for bilateral hearing loss prior to June 5, 2018, is denied. A rating in excess of 10 percent for bilateral hearing loss as of June 5, 2018, and prior to November 5, 2019, is denied. A rating in excess of 20 percent for bilateral hearing loss as of November 5, 2019, is denied. REMANDED Entitlement to service connection for a skin condition, on the basis of substitution, is remanded. FINDINGS OF FACT 1. The weight of the competent and probative evidence shows, prior to June 5, 2018, Level II hearing for the right ear and Level II hearing for the left ear, and does not reflect an exceptional pattern of hearing loss in either ear. 2. The weight of the competent and probative evidence shows, as of June 5, 2018, and prior to November 5, 2019, at worst, Level IV hearing for the right ear and Level IV hearing for the left ear, and does not reflect an exceptional pattern of hearing loss in either ear. 3. The weight of the competent and probative evidence shows, as of November 5, 2019, Level IV hearing for the right ear and Level VI hearing for the left ear, and does not reflect an exceptional pattern of hearing loss in either ear. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss prior to June 5, 2018, are not met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85-4.86, Diagnostic Code 6100. 2. The criteria for a rating in excess of 10 percent for bilateral hearing loss as of June 5, 2018, and prior to November 5, 2019, are not met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85-4.86, Diagnostic Code 6100. 3. The criteria for a rating in excess of 20 percent for bilateral hearing loss as of November 5, 2019, are not met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85-4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to February 1972, and from January 1974 to September 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appellant is the Veteran's surviving spouse. The RO accepted her as claimant in substitution of the Veteran. See 11/19/2020, Notification Letter (accepting the appellants claim for substitution of appeal). In relevant part, this case was before the Board in August 2019, at which time it was remanded for further development. The requested development has been completed with regard to the increased rating claims and no further action to ensure compliance with the remand directives is required. However, the requested development has not been substantially completed with regard to the service connection claim for a skin condition, the matter must be remanded again to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). With regard to the issues at hand, as an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Veteran is competent to report symptoms observable by sense and contemporaneous medical diagnoses, but not competent to diagnose or assess the etiology of complex medical disorders. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to an initial compensable rating for bilateral hearing loss prior to June 5, 2018. 2. Entitlement to a rating in excess of 10 percent for bilateral hearing loss as of June 5, 2018, and prior to November 5, 2019. 3. Entitlement to a rating in excess of 20 percent for bilateral hearing loss as of November 5, 2019. Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of pure tone audiometry tests. See 38 C.F.R. §§ 4.85-4.86. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a pure tone audiometry test. 38 C.F.R. § 4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). First, a Roman numeral designation of I through XI is assigned for the level of hearing impairment in each ear. Table VI is used to determine a Roman numeral designation based on a combination of the speech discrimination percentage and the average pure tone threshold, or the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for hearing impairment in both ears. 38 C.F.R. § 4.85. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher. 38 C.F.R. § 4.86(b). After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that Veteran is not entitled to an initial compensable disability rating for bilateral hearing loss prior to June 5, 2018, the Veteran is not entitled to a rating in excess of 10 percent prior to November 5, 2019, and that the Veteran is not entitled to a rating in excess of 20 percent thereafter. The Board first notes that the Veteran does not have an exceptional pattern of hearing impairment, as defined by 38 C.F.R. § 4.86. All applicable tests include valid pure tone and speech discrimination scores. As such, Table VI applies. See 38 C.F.R. §§ 4.85-4.86. In a July 2015 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 20 25 55 70 43 LEFT 30 35 65 75 51 Speech audiometry revealed speech recognition ability of 86 percent in the right ear, and 84 percent in the left ear. 09/01/2015, C&P Exam. The VA treatment records reveal that, in a subsequent June 2018 audiological evaluation, speech audiometry revealed speech recognition ability of 96 percent in the right ear, and 84 percent in the left ear. The clinician assessed that the Veteran had mild to severe sensorineural hearing loss in the right ear and mild to profound sensorineural hearing loss in the left ear. Additionally, the word recognition testing results indicated that the Veteran likely has moderate difficulty understanding speech in everyday listening settings. However, the Veteran's pure tone thresholds were not assessed during the audiological evaluation. 03/05/2019, CAPRI, page 117. An August 2019 Board decision noted the Veteran's assertions regarding the severity of his hearing loss disability and that the Veteran had last been examined in July 2015. The Board remanded the claim for another VA examination to ascertain the current severity and manifestations of his hearing loss. 08/20/2019, BVA Decision. In a November 2019 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 40 35 65 75 54 LEFT 50 65 75 85 69 Speech audiometry revealed speech recognition ability of 80 percent in the right ear, and 72 percent in the left ear. 09/01/2015, C&P Exam. Prior to June 5, 2018, using the above reported findings, the Veteran's right ear pure tone average combines with the right ear speech discrimination to yield a Roman numeral II in Table VI, and his left ear pure tone average also combines with the left ear speech discrimination for a Roman numeral II, per Table VI. See 38 C.F.R. § 4.85. Roman numerals II and II combine for a zero, or non-compensable, rating in Table VII. As of June 5, 2018, and prior to November 5, 2019, using the above reported findings, the speech discrimination would yield, at worst, Level IV hearing for the right ear and Level IV hearing for the left ear. Although the June 2018 audiological evaluation did not assess pure tone thresholds, the clinician did note an increase in severity of the Veteran's hearing loss condition, which manifests in difficulty understanding speech in most settings. In providing the Veteran the benefit of doubt, Table VI would yield a maximum severity of Level IV hearing in both ears from the speech discrimination findings from the June 2018 audiological evaluation. Roman numerals IV and IV combine for a 10 percent rating in Table VII. And, as of November 5, 2019, the Veteran's right ear pure tone average combines with the right ear speech discrimination to yield a Roman numeral IV in Table VI, and his left ear pure tone average also combines with the left ear speech discrimination for a Roman numeral VI, per Table VI. See 38 C.F.R. § 4.85. Roman numerals IV and VI combine for a 20 percent rating in Table VII. The Board has considered the appellant's contentions of the effects hearing loss had in the Veteran's daily life and that his hearing loss is worse than the rating reflects. The Veteran and appellant are competent and credible to report any symptoms of hearing loss. See Jandreau, 492 F.3d at 1377. Nevertheless, VA's rating of hearing impairment is based on specific measurements that must be gathered by a state-licensed audiologist using specific tests, as discussed above. The Board finds that the competent medical evidence, to include the VA examination testing results, are more probative and outweigh the lay subjective reports of a more severe degree of disability, because they were provided by personnel with specialized training in hearing loss and directly address the rating criteria for the Veteran's hearing loss. The Board notes that VA's Schedule for Rating Disabilities has been found to contemplate the problems reported by the Veteran in terms of his difficulty hearing others. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that "the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech"). Accordingly, the appeal for higher ratings is denied. The Board has considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence is against an initial compensable disability rating to June 5, 2018, against a rating in excess of 10 percent prior to November 5, 2019, and against a rating in excess of 20 percent thereafter. Under these circumstances, the doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 4. Entitlement to service connection for a skin condition, on the basis of substitution, is remanded. The appellant contends that the Veteran's skin condition was related to service. An August 2019 Board decision noted the Veteran's post-service treatment records reflecting that the Veteran had been treated for a skin rash of the legs, and that diagnoses of purpura pigmentosa chronica, Aden's ulcer, and stasis dermatitis were of record. The Board also noted that the Veteran had been presumed to have herbicide exposure as a result of his service in Vietnam and that, during his period of service, the Veteran was treated for a fungus-related rash of the groin. The Board remanded the claim and directed the Agency of Original Jurisdiction (AOJ) to afford the Veteran with a VA examination to determine the nature and etiology of the Veteran's skin condition. 08/20/2019, BVA Decision. A November 2019 VA examination noted diagnoses of dermatitis (or eczema), dermatophytosis, purpura pigmentosa chronica, and photosensitivity reaction secondary to chemotherapy. The examiner opined that the Veteran's skin condition is less likely than not related to service. Specifically, the examiner indicated that the current condition of purpura pigmentosa chronica is not associated with herbicide exposure or the Veteran's in-service fungal rash. However, the examiner indicated that the Veteran's skin condition is caused by venous insufficiency but did not opine as to whether the Veteran's venous insufficiency is related to a service-connected disability, such as lung cancer or diabetes mellitus. Additionally, the examiner noted that the Veteran had a rash related to chemotherapy, which had resolved, but did not opine as to whether the rash had resolved prior to the relevant appeals period. 11/05/2019, C&P Exam; 11/05/2019, C&P Exam (medical opinion). The Veteran died in September 2020 and the appellant was accepted as claimant in substitution of the Veteran. 11/19/2020, Notification Letter Upon review of the record, the Board finds that the November 2019 VA examiner did not sufficiently consider whether the Veteran's skin conditions were proximately due to or aggravated by any service-connected disability, to include treatment for the Veteran's service-connected lung cancer. Given that the November 2019 VA examiner failed to address the theory of entitlement that the Veteran's skin condition was proximately due to or aggravated by his service-connected disabilities, the Board finds that the November 2019 VA examination is incomplete to adjudicate this issue, to include on a secondary basis, at this time and an addendum is necessary. This matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. Additionally, request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After completing directive # 1, obtain an addendum opinion from an appropriate clinician that addresses the following: (a.) Whether it is at least as likely as not that the Veteran's skin conditions were either 1) proximately due to OR 2) aggravated by a service-connected disability, to include any treatment for the Veteran's service-connected lung cancer. (b.) Whether it is at least as likely as not that any of the Veteran's photosensitivity reaction secondary to chemotherapy resolved prior to the relevant appeals period, beginning on March 27, 2015. See 03/27/2015, VA 21-0966 Intent to File. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Han The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.